Commissioners file no: CDLA 2733 2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1	I allow the appeal in this case. 

2	The claimant and appellant is appealing with my permission against the decision of the Warrington appeal tribunal on 6. 2. 2002 under reference U 06 078 2000 01442. I granted permission in this case and considered it together with the claimant’s appeal in CDLA 1628 2002. My decision dismissing the appeal in that case is made by a separate decision on the same date.  There is no common ground between the two decisions. 

3	For the reasons below, the decision of the tribunal is erroneous in law. I set it aside.  I refer the appeal to a differently constituted tribunal for determination in accordance with the directions given in this decision (Social Security Act 1998, section 14(8)(b) and (9)). 

Background to the appeal

4	There are two decisions in issue in this appeal. The first is a revision decision made on 24. 5. 2000. It revised the underlying decision to the effect that the claimant is not entitled to either component of disability living allowance from and including 24. 1. 2000. The decision revised was dated 27. 3. 2000. The letter accompanying the decision of 25. 4. 2000 states that the decision is based, among other things, on the decision of the tribunal “held on 12. 4. 2000”.  This appears to refer to a tribunal hearing on 31. 3. 2000 about the claimant’s claim for severe disablement allowance. It is not clear whether there has been any appeal against that decision. The second decision in issue is the refusal of a renewal claim made on 24. 1. 2000 with effect from 13. 6. 2001. I have for the sake of simplicity left out of the account various reconsiderations that did not lead to any change of substantive decision. 

5	The decision of 27. 3. 2000 was a supersession decision superseding earlier decisions to the effect that the claimant was entitled to the higher rate of the mobility component and highest rate of the care component of disability living allowance from and including 24. 1. 2000 to 23. 1. 2002.  The decisions superseded appear to be a decision awarding the lowest rate of the care component from and including 10. 11. 1998 to 12. 6. 2000, and another decision awarding the higher rate of the mobility component from and including 13. 6. 1998 to 13. 6. 2001. As the end dates of those two awards were inconsistent, whichever is the later was invalid. This does not seem to have been noticed at the time. The papers show that there was a decision on 30. 7. 1998 to award the higher rate of the mobility component for the period to 13. 6. 2001, and a later supersession decision on 3. 9. 1999 to award the lowest rate of the care component to 12. 6. 2000 but without adjusting the higher rate of the mobility component. It is the second decision that is invalid and the lowest rate of the care component should have been awarded to 13.6. 2001 (Social Security Contributions and Benefits Act 1992, section 71(3)). 

6	The case came before a tribunal on 27. 3. 2001. There was an appeal against that decision. I allowed it on 24. 10. 2001 under decision CDLA 2254 2001. That decision, made with the consent of the parties, accepted the claimant’s contention that certain aspects of the case (in particular, the last minute introduction of the Department’s medical evidence) were unfair in the particular circumstances. I did not deal with the substance of the appeal. 

7	The appeal went to a second tribunal on 6. 2. 2002. The tribunal identified the two decisions it was considering as a supersession of an award of the higher rate of the mobility component and lowest rate of the care component ending on 12. 6. 2000 and a refusal of a renewal application from that date. The tribunal considered evidence about entitlement and the power to supersede at some length. Despite noting that it was considering two appeals, it made only one decision, namely that the claimant was not entitled to an award of disability living allowance from and including 24. 1. 2000. It therefore made four errors. First, it treated a revision decision as a supersession decision. In doing so, it missed the point that the decision was patently inconsistent with the powers to revise in regulations 3 to 5 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. Second, it left the appeal on the other decision undecided. I set out a full analysis of what I saw as the course of events in this case in a direction with my grant of permission to appeal. The secretary of state's representative accepts this analysis of the decisions as correct and supports the appeal. The claimant, not surprisingly, does not appear to have followed the point, but affirms she wants the decision set aside. Third, it failed to sort out what was the correct end date of the decisions being considered. This is important because the tribunal decided without reason that the decisions both ended on 12. 6. 2000, whereas they should both have ended on 12. 6. 2001. As a result, it does not appear technically to have considered the period from 13. 6. 2000 to 12. 6. 2001. Fourth (and linked with the third point), the revised decision under appeal was a fixed term decision, but the tribunal took an open ended decision. That added further uncertainty about the period covered.  For those reasons, I set the decision aside for the reasons summarised above. But my main concern is how to move these appeals forward. 

8	Noting both that this was a “second time around” appeal and also the apparent unresolved issues, I invited the secretary of state's representative to suggest the best course of action to get the cases sorted out. The representative suggested that I remit the case to the tribunal with directions to sort out the errors. 

The tribunal’s powers to correct erroneous decisions

9	The submission of the secretary of state's representative was supported by a reference to the decision of the Commissioner in CIB 2100 2001. In that case (at paragraph 25) the Commissioner accepted a submission that the tribunal could replace a faulty decision of the Secretary of State but could not make its own decision. The point needed thought after the introduction of the Social Security Act 1998. This is because the procedure sections of that Act repealed and did not replace the former powers of tribunals to deal with new questions (formerly in section 36 of the Social Security Administration Act 1992) and restricted the extent to which a tribunal can (to use the old word) review a previous decision. Nonetheless, provided that a tribunal is careful in noting which decisions it is considering and is careful to stay within its limited powers, I agree with the Commissioner in CIB 2100 2001 that a tribunal has power to correct errors of this sort.  But I must add some notes of caution. 

10	First, a tribunal has no power to make a new decision. For example, it has power to correct a supersession decision, but not to take a supersession decision when none has been made by the Secretary of State. That is stated in clear terms by the Commissioner in CIB 2100 2001. I gave a short decision to that effect recently in CDLA 3135 2002. In that case I set aside with the consent of both parties a purported supersession decision introduced by a tribunal. It had found that the supersession decision of the Secretary of State was made without grounds and set it aside, but then went on to make a new and different supersession decision. I confirmed that it was right to set aside the original supersession decision, but I also set aside the tribunal’s decision as without jurisdiction. Again with agreement of both parties, I reinstated the previous decision without supersession but referred the unresolved issues to the Secretary of State. In such a case, the only power of a tribunal is to set aside any erroneous decision that it cannot or does not revise, reinstate the previous decision or decisions and, if this leaves something unresolved, refer the matter back. 

11	Second, there is a fundamental distinction between supersession decisions and revision decisions. This was completely ignored in this case. As sections 8, 9, 10 and 12 of the Social Security Act 1998 make clear, a revision decision takes effect as an alteration of the decision revised. It is not a new decision. A supersession decision is a new decision. Appeals run only against supersession decisions and original decisions (whether or not revised). An appeal against a revised decision is an appeal against the original decision as revised. In this case the appeal is against the decision of 27.3.2000 as revised, and not against the decision of 25. 4. 2000 to revise. One point of importance about this is that if the revision is found to be defective such that it must fall, then the unrevised decision comes automatically back into effect. The tribunal must therefore look through the revision to the underlying decision. If it find that the revision is faulty and cannot be corrected by revision, then it cannot replace it by a supersession decision operating from the date of the purported revision. That would be a new decision.

12	Third, the tribunal has the power to correct, not the duty to do so. Exercise of that power, as with all such powers, must be undertaken judicially. The tribunal must bear in mind its duty to act independently and impartially as between both parties. It is the task of the tribunal to decide the appeal, not simply to correct errors made by the Secretary of State or any other party. It must also bear in mind the requirements of a fair hearing. This is of importance if the tribunal is acting on its own initiative in correcting decisions, rather than on the submission of a party to the hearing. This is because it may be less obvious to a party that a new matter has been introduced if the other party does not raise it expressly. In particular, the tribunal should not itself introduce new elements that are prejudicial to a party without ensuring that the party has proper notice of them. If necessary, it must ensure that the party has given a full and informed consent to a new matter introduced without proper notice. That was an error noted in my previous decision on this appeal. 

Directions to the new tribunal 

13	I must apply those points. This decision gives the parties notice about the issues, so I do not need to consider that aspect further. The new tribunal is considering the decision of 27.3.2000 as revised, not the decision of 25. 4. 2000 in isolation. The purported revision of 25. 4. 2000 is patently wrong in law. It is inconsistent with regulations 3 to 5 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. This is because it purports to operate from a date from which it cannot operate as a revision. I direct the tribunal to cancel the revision. It must consider the unrevised decision of 27. 3.2000.

14	The tribunal must take one of three courses of action with regard to the decision of 27. 3. 2000:
(1) It may confirm the decision of 27. 3. 2000 with the revision cancelled. 
(2) It may revise the decision of 27. 3. 2000 in some way permitted by regulations 3 to 5 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. It may do this if it considers that the decision of 27. 3. 2000 is wrong in law or fact and it finds the basis for a valid revision. 
(3) It may set aside the decision of 27. 3. 2000 as wrong in law if it so decides but it cannot or does not revise it. If it takes this course of action, it must reinstate the previous decisions that were subject to supersession, if it can. It will then be faced with the fact that one of the decisions superseded on 27. 3. 2000 is patently wrong in law and cannot be confirmed without itself being revised. So it will have to look into those issues as well. I have indicated above which of those decisions is in my view valid, and why. 

15	Just as the tribunal cannot make a new decision, and can only consider an appeal against a decision, so equally it must consider the appeal against each decision before it separately and take a separate decision on each. The new tribunal must decide the undecided appeal, unless it is informed of a decision or supersession. This is the appeal against the refusal to award disability living allowance on the renewal claim with effect from 13 June 2000. That decision cannot be subsumed in the decision under appeal to the Commissioner. This is because it is a separate decision of the Secretary of State to that confirmed by that tribunal operating from a separate effective date.  

Direction to the parties 
 
16	I suspect the main problem in this case is that the submission originally made to the tribunal by the secretary of state's representative (documents 1b and 1c) is wrong in both law and fact and is also misleading. The submission to the tribunal was that the decision under appeal was that the appellant was not entitled from 24. 1. 2000. That is only one of the decisions under appeal. It is also stated wrongly (see document 137). Further, it is a revised decision. The submission totally fails to note this, or to note the other decision at all. The word used about the revision is “reconsideration”. That is not a statutory word. It is ambiguous and should not be used in this context. As I have seen similar confusion introduced in other appeals by the use of non-statutory terms, I urge the Secretary of State to instruct his officers to use the language of the Social Security Act 1998 so as to avoid confusion and sloppy thinking. The formal submission to the tribunal should indicate both decisions. It should state that the first decision under appeal was a revised decision, indicating when and why there was a revision, and also the precise terms of the revisions and what was the decision before revision. It should also state the terms of the other decision, indicating that it was a renewal decision. The first page of the submission states that the previous decisions both ended on 23. 1. 2000. That is also either wrong or misleading. Neither of them originally ended on that date. But these errors do perhaps explain where the tribunal went wrong.  

17	I direct the secretary of state's representative to make a new, accurate and complete submission to the tribunal. The submission is to deal with the above points and advise of any relevant new decisions or changes. To allow a speedy rehearing, that submission is to be made within one month of this decision unless a district chairman directs otherwise. 

18	The claimant did not have a representative at the previous hearing of this case. She may wish to consider asking a citizens advice bureau, welfare rights office, solicitor, or other professional adviser for help with the rehearing. 

David Williams 
									Commissioner 

									2 October 2002